Tusla loses appeal against release of children to mother

High Court finds parents’ rights to constitutional justice were ‘fundamentally’ breached

By a six to one majority, the Supreme Court dismissed Tusla’s appeal against an order directing the phased release of two children into their mother’s care

By a six to one majority, the Supreme Court dismissed Tusla’s appeal against an order directing the phased release of two children into their mother’s care


The Supreme Court has dismissed an appeal by Tusla, the Child and Family Agency, against an order directing the phased release of two children into their mother’s care.

The High Court correctly found the parents’ rights to fair procedures and constitutional justice were “fundamentally” breached by how the District Court granted the interim care orders, including not allowing an adjournment to ensure they were fully legally represented, the Supreme Court said.

The agency had agreed to a week-long adjournment and did not claim the children were in any immediate danger.

By a six to one majority on Thursday, the Supreme Court dismissed the appeal, which centred on whether applications under article 40 of the Constitution for an inquiry into the legality of detention can ever be used in childcare matters.

The agency argued article 40 applications were not appropriate in childcare matters.

All seven judges “deprecated” use of article 40 applications in routine inter-parental care disputes but the majority held article 40 proceedings were appropriate in the “exceptional” circumstances of this case, involving “fundamental” denial of the parents’ rights to justice and fair procedures.

Invalid hearing

The interim care orders were made at an invalid hearing with the effect the children were held “without legal mandate” and, in the words of article 40, were not being detained in accordance with law, Mr Justice John MacMenamin said. The effective representation of parents was not only a vindication of their rights but also of the children’s’ rights.

It was important to note the continuity of childcare proceedings and to ensure the interim care applications proceed as if the invalid District Court order was never made, the judges stressed.

Mr Justice Donal O’Donnell said this “exceptional” case did not provide the “bright line rule” sought by the agency over use of article 40 in childcare matters but article 40 should be applied only in cases of a fundamental defect which must be remedied by an order for release “forthwith”.

Ms Justice Elizabeth Dunne said the outcome of the case might have been different had the agency sought emergency, rather than interim, care orders as interim orders may sometimes require a short adjournment.

Dissenting, Mr Justice Peter Charleton said the High Court erred in apparently taking the view a remedy in the 1991 Child Care Act providing against a “chaotic” release of the children was not applicable in this case.

He also queried whether children who are subject of care orders can “truly” be said to be deprived of their liberty.

Interim care orders

The agency applied in late October 2015 to the District Court for interim care orders for the children, then aged 14 and five and living with their mother in various locations with no settled home. Both parents were said to have serious drug addiction issues, resulting in the children living in “chaotic” circumstances.

The father is illiterate and neither parent had an opportunity to fully instruct lawyers or consider social work reports when the case came for hearing before the District Court.

The District Court judge, apparently due to concern for the children, refused to adjourn, heard the application and granted 29-day interim care orders. The mother then sought an article 40 inquiry into the legality of the children’s detention and the father was separately represented in that hearing.

The High Court dismissed the agency’s argument article 40 was not appropriate, ruled what happened in the District Court breached the parents’ rights and directed a phased release of the children into the mother’s custody.

The agency later successfully reapplied to the District Court for interim care orders. The parents have not appealed those and the children remain in foster care.